MARTIN v. KANE

September 14, 2004.

HUBERT DWIGHT MARTIN, Petitioner,
v.
A.P. KANE, Respondent.

The opinion of the court was delivered by: MARTIN JENKINS, District Judge

ORDER OF DISMISSAL

Petitioner, currently incarcerated at Soledad State Prison,
filed this pro se petition for a writ of habeas corpus
challenging disciplinary action taken against him by prison
officials based on a finding that he had violated prison rules.
He has paid the filing fee.

This Court may entertain a petition for a writ of habeas corpus
"in behalf of a person in custody pursuant to the judgment of a
State court only on the ground that he is in custody in violation
of the Constitution or laws or treaties of the United States."
28 U.S.C. § 2254(a); Rose v. Hodges, 423 U.S. 19, 21 (1975).

A prisoner must bring a habeas petition if the nature of his
claim is such that it would necessarily imply the invalidity of
his conviction or continuing confinement. Bogovich v. Sandoval,
189 F.3d 999, 1002 (9th Cir. 1999) (ADA claim); Butterfield v.
Bail, 120 F.3d 1023, 1024 (9th Cir. 1997) (§ 1983 claim). Thus,
a claim that prison officials unconstitutionally deprived an
inmate of time credits in connection with disciplinary measures
must be brought under habeas because the claim, if successful,
would entitle the inmate to earlier release. See Young v.
Kenny, 907 F.2d 874, 876-78 (9th Cir. 1990); see also Ramirez
v. Galaza, 334 F.3d 850, 858-59 (9th Cir. 2003) (implying that claim, which if successful would "necessarily" or
"likely" accelerate the prisoner's release on parole, must be
brought in a habeas petition). Here, petitioner alleges that
officials initially revoked 31 days of his good time credits
after finding him guilty of the disciplinary charges. He
administratively appealed this decision, and it was reversed and
remanded. There was a rehearing, following which petitioner was
found guilty again, but there was no forfeiture of time credits.
Instead, petitioner simply lost sixty days of privileges. As
petitioner did not lose time credits, the fact or duration of his
custody is unaffected by the discipline he challenges in this
petition. Rather, petitioner's claims challenge the conditions of
his confinement.

The preferred practice in this Circuit is that challenges to
conditions of confinement be brought in a civil rights complaint,
not in a habeas petition. See Badea v. Cox, 931 F.2d 573, 574
(9th Cir. 1991) (holding civil rights action is proper method of
challenging conditions of confinement); Crawford v. Bell,
599 F.2d 890, 891-92 & n. 1 (9th Cir. 1979) (affirming dismissal of
habeas petition on basis that challenges to terms and conditions
of confinement must be brought in civil rights complaint).
Consequently, petitioner may bring his claim in a civil rights
complaint, but not in a habeas petition. Cf. Wilwording v.
Swenson, 404 U.S. 249, 251 (1971) (finding challenge to
constitutionality of conditions of confinement more properly
brought as civil rights action under 42 U.S.C. § 1983).

Accordingly, the petition for a writ of habeas corpus is
DISMISSED without prejudice to petitioner's raising his claim
under 42 U.S.C. § 1983 in a civil rights action.

The Clerk shall close the file and terminate any pending
motions.

IT IS SO ORDERED.

[EDITORS' NOTE: THIS PAGE CONTAINED "CERTIFICATE OF SERVICE".] JUDGMENT IN A CIVIL CASE

() Jury Verdict. This action came before the Court for a
trial by jury. The issues have been tried and the jury has
rendered its verdict.

(X) Decision by Court. This action came to trial or hearing
before the Court. The issues have been tried or heard and a
decision has been rendered.

IT IS SO ORDERED AND ADJUDGED.

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